The Devendra Fadnavis government has clearly anticipated that substantive legal hurdles stand in the way of reservations for Marathas. On 3 December, the Maharashtra government filed a caveat application — to ensure they are heard in any matter concerning reservations for the Maratha community — in the Supreme Court.

Reservations for Marathas, and other dominant castes, such as Jats and Patels run into specific problems because of the apex court’s jurisprudence on reservations. Especially in the case of Marathas, previous litigation indicates the government is likely to run into hurdles while trying to ensure that the reservations are not struck down.

File image of Maharashtra chief minister Devendra Fadnavis. PTI

What is the Supreme Court’s jurisprudence on reservations? Firstly, the court distinguishes between reservations for Scheduled Castes and Scheduled Tribes and backward classes. While the former access reservations on the basis of historical disadvantages, the latter are required to demonstrate “social and educational backwardness”. In other words, governments cannot simply issue a notification providing reservations to groups, they are required to demonstrate that the community can be considered as ‘backward’ in light of empirical evidence.

Secondly, in the case of backward classes, the Supreme Court has made certain innovations in the implementation of reservations. The first of these is the 50 percent ceiling limit on total number of reservations. With the Maratha reservations, the total reserved seats in Maharashtra would go up to 68 percent. Second, the Supreme Court excluded those from the scope of reservations who belong to the “creamy layer” of a particular caste. The logic for both these innovations was that the State’s discretion in matters of reservations cannot be unfettered and must be subject to certain limitations. It must be noted that neither of these innovations can be found in constitutional provisions, and were developed solely by the Supreme Court.

Legal hurdles

That reservations for Marathas are likely to face significant legal challenges is best reflected in the Bombay High Court judgment of Sanjeet Shukla. The court was addressing two Ordinances promulgated by the previous government: the first, where specific castes among Muslims were provided with separate reservations, and second, separate reservations for Marathas.

The judgment struck down reservations for Marathas on the grounds that the government had not provided any empirical evidence of the community’s backwardness, and in fact, successive commissions recorded that Marathas were a “prestigious community”. In contrast, reservations in education for Muslim castes were allowed to continue. The court recorded that there was sufficient empirical evidence of their backwardness, including reports from the Mahmoodur Rahman Working Group and the Sachar Committee.

The contrast between these two reservations is indicative of what the court considers essential for any reservation to be acceptable: demonstrable backwardness on the basis of objective criteria. Furthermore, other “constitutional limitations”, including the 50 percent ceiling, are likely to be hurdles for the Maharashtra government.

The Maharashtra government has sought to learn from Sanjeet Shukla and attempted to fill the necessary gaps. Firstly, it has relied on the findings of the State Backward Classes Commission (SBCC), which recommended that Marathas be given reservations on the basis of their backwardness.

Secondly, they have expressed an intent to replicate the Tamil Nadu model. Tamil Nadu currently has 69 percent reservations, and the reservations were originally protected by the IX Schedule of the Constitution. Originally, the laws included in the IX Schedule were protected from judicial review, and therefore, could not be subject to limitation of the 50 percent ceiling.

However, following the Supreme Court’s decision in IR Coelho, laws included in the IX Schedule would be subject to the basic structure doctrine test. The test assesses whether a constitutional amendment violates specific basic principles of the Constitution, including the right to equality guaranteed under Article 14. The Tamil Nadu reservation itself is still subject of a challenge in light of IR Coelho.

It is unlikely that reservations for the Maratha community can be protected by including them in the IX Schedule. Moreover, anticipating that the findings of SBCC report are likely to be challenged in court, the government has preferred to not make it public. It is in this context that one sees a very limited scope for the Maharashtra government to get to the finish line of this obstacle course without making changes in its legal strategy.

What complicates the matter further is that the Maharashtra government has certain political limitations. For instance, the Bharatiya Janata Party has opposed the chief minister of Telangana’s demand to breach the 50 percent ceiling so that Muslim backward castes may access an increased quota of 12 percent in the state.

Advocating for a departure from the 50 percent ceiling in one state and opposing it in another is unlikely to work for the party. It is also important to note that bypassing the ceiling is likely to open up demands for reservations on multiple fronts. It is uncertain if the ruling party is ready for such large-scale revisions to India’s reservation system.

In the absence of protections afforded under the IX Schedule, the only option before the Maharashtra government is seeking to undo the 50 percent ceiling limit: either through a constitutional amendment, or through judicial intervention. The former is likely to be challenged in court, and the latter is unlikely to result in any significant departure from existing precedent.

Regardless of the Maharashtra government’s political limitations, the Supreme Court’s jurisprudence on reservations requires significant review. Firstly, because its key innovations: the 50 percent ceiling and the creamy layer doctrine are based on assumptions and not on specific constitutional provisions. Secondly, because they do not account for the varied forms in which discrimination, backwardness and historical disadvantage can be measured. The court’s jurisprudence on reservations is muddled and leaves very little scope for the government of the day to identify backward groups and develop safeguards for them.

Lastly, the continued demand for reservations from various quarters is also a reflection of the government’s lack of interest in developing affirmative action programs that are not focused on quotas, such as deprivation points and targetted non-statutory benefits.